REPUBUC OF THE PHILIPPINES

COURT OF TAX APPEALS

QUEZON CITY

FIRST DIVISION
*************

AIR NEW ZEALAND,

Petitioner,

C.T.A. CASE NO. 6657

Members:
-versus-
ACOSTA, Chairperson
BAUTISTA, and
CASANOVA, JJ.

COMMISSIONER OF INTERNAL REVENUE, Promulgated:

Respondent.

X- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X

DECISION
BAunSTA, L., ~:

This case seeks the refund of allegedly erroneously paid taxes on Gross Philippine

Billings covering the taxable year 2000 in the amount of EIGHT HUNDRED SEVENTY

TWO THOUSAND FOUR HUNDRED FORTY SEVEN AND 66/100 PESOS

(P872,447 .66).

The undisputed facts as culled from the records of the case are as follows:

Petitioner, Air New Zealand, is a foreign corporation organized and existing under the

laws of New Zealand with prindpal office at ANZ Level 21, Quay Tower, 29 Customs Street,

West Auckland I, New Zealand. It is an off-line international air carrier with no landing
DECISION
C.T.A. CASE NO. 6657
Page 2

rights in the Philippines, nor is it registered with the Securities and Exchange Commission as

a corporation, branch office or partnership. 1 However, it maintains a general sales agent

here in the Philippines which sells passage documents covering its off-line flights.

On the other hand, respondent is the duly appointed Commissioner of Internal

Revenue charged with the duties of assessing, collecting as well as refunding internal

revenue taxes, among others, with office at the 5th Floor of the BIR National Office Building

located at Agham Road, Diliman, Quezon City.

For the taxable year 2000, petitioner filed, through its general sales agent, Quarterly

Income Tax Returns and paid taxes on Gross Philippine Billings at the reduced rate of 1 1f2%

pursuant to Article 8(2) of the RP-New Zealand Tax Treaty, as follows:

PERIOD AMOUNT PAID DATE FILED

1st Quarter p 260,364.00 5/30/2000
2nd Quarter 217,924.79 8/29/2000
3rd Quarter 119,671 .00 11/29/2000
4th Quarter 274,487.87 4/16/2001
Total p 87? 447 66

On the ground that it is not liable to income tax on Gross Philippine Billings,

petitioner filed with the respondent on February 5, 2003, through Revenue District Office

No. 47, a formal claim for refund for the recovery of the amount of P872,447.66 allegedly

representing the erroneously paid taxes on Gross Philippine Billings for the taxable year

2000.

With no immediate response received from the respondent and before it could be

barred by prescription, petitioner deemed it proper to elevate its claim to this Court through

this instant Petition for Review on April14, 2003.

On June 4, 2003, respondent filed his Answer raising the following as his Special and

Affirmative Defenses:

1
par. 2, Joint Stipulation of Facts & Issues
DECISION
C.T.A. CASE NO. 6657
Page 3

4. He reiterates and repleads the preceding paragraphs of this Answer as

part of his Special and Affirmative Defenses;

5. Petitioner's alleged claim for refund is subject to administrative

investigation/examination by the respondent;

6. It was held in the leading case of Commissioner of Internal Revenue

vs. British Overseas Airways Corp., et al., 149 SCRA 395, that:

"The source of an income is the property, activity or service

that produced the income. For the source of income to be
considered as coming from the Philippines, it is sufficient that
the source of income is derived from activity within the
Philippines xxx" (emphasis supplied}

The British Overseas Airways Corp. (BOAC), Air India, American Airlines
and Japan Airlines in the cases of Commissioner v. BOAC, 149 SCRA
395, Commissioner v. Air India, 157 SCRA 648, Commissioner v.
American Airlines, 180 SCRA 274 and Commissioner v. Japan Airlines,
202 SCRA 450 had no landing rights - but sold tickets - in the
Philippines. In these cases, the Supreme Court held:

"The absence of Hight operations to and from the Philippines is

not determinative of the source of income or the situs of
income taxation x x x. The test of taxability is the "source';
and the source of an income is that activity x x x which
produced the income."

Unquestionably, the passage documentations in these cases were sold

in the Philippines and the revenue therefrom was derived from a
business activity regularly pursued within the Philippines. In BOAC
case, BOAC tickets sold covered the transport of passengers and cargo
to and from foreign cities. And even so, it cannot alter the fact that
income from the sale of tickets was derived from the Philippines.
Hence, the aforementioned foreign airline companies were held liable
for the two and one-half per cent (2 112%) Gross Philippine Billings.

In the case at bar, petitioner admitted that it is an off-line international

air carrier having no landing rights in the Philippines, hence, does not
maintain flight operations to and from the Philippines. Further, it is
admitted that petitioner derived gross revenues from the carriage of
passengers between ports or points outside the territorial jurisdiction of
the Philippines through the sale of passage documents in the
Philippines by petitioner's sales agents (par. 4 & 7, page 2 of Petition
for Review).

The instant case is analogous to the cases of British Overseas Airways

Corp. (BOAC), Air India, American Airlines and Japan Air Lines. Hence,
it is submitted that petitioner is liable to the two and one-half per cent
(2 112%) Gross Philippine Billings Tax under Section 28 (A)(3)(a) of the
Tax Code, as amended.
DECISION
C.T.A. CASE NO. 6657
Page 4

7. Petitioner anchored its claim for tax refund on the provision of Revenue
Regulations No. 15-2002 dated May 30, 2002, particularly Section 3
thereof, which provides that:
"Sec. 3. Foreign Airline Companies Without Flights Starting
from or Passing Through any Point in the Philippines. - An off-
line airline having a branch or sales agent in the Philippines
which sells passage documents for compensation or
commission to cover off-line flights of its principal or head
office, or for other airlines covering flights originating from the
Philippine ports of off-line flights, is not considered engaged in
business as an international air carrier in the Philippines and is,
therefore, not subject to Gross Philippine Billings Tax provided
for in Section 28 (A)(3)(a) of the Code nor to the three per
cent (3%) common carrier's tax under Section 118 (A) of the
same Code."

Assuming arguendo, that the provisions of Revenue Regulations No.

15-2002, particularly Section 3 thereof, on the exemption from the
Gross Philippine Billings Tax as provided for in Section 28 (A)(3)(a) of
foreign airline companies without flight starting from or passing
through any point in the Philippines applies to the petitioner, the same
provision for exemption does not apply to the instant case in view of
the non-retroactivity of rules and regulations. It is worthy of
emphasis that said revenue regulations was issued in 2002 only and
its REPEAUNG AND EFFECTIVITY CLAUSES provide that:
"SEC 11. REPEAliNG CLAUSE. - The provisions of these
regulations expressly amend Revenue Regulations No. 6-66 as
well as all other existing rules and regulations which are
inconsistent herewith."

Revenue Regulations No. 6-66 dated December 1, 1966

provides the Regulations for Percentage Tax Purposes on
International Air Transport Services. Sections 1 (b) and 2(a)
thereof provides:

"Section 1. Definition: When used in these

regulations. -

(b) The term "off-line airline" means an airline having

no flight operations to and from the Philippines;"

"Section 2. International airline companies without

flights starting from or passing through any point in
the Philippines. -

(a) An off-line international airline having a branch

office or a sales agent in the Philippines which sells
ticket for compensation or commission to cover off-line
flights of its principal foreign airline or for other
airlines, is not considered engaged in business as a
common carrier in the Philippines, and therefore, not
subject to common carriers fixed and percentage taxes
provided for in Sections 182 and 192 of the tax Code."
(emphasis supplied)
DECISION
C.T.A. CASE NO. 6657
Page 5

"SEC. 12. EFFECTIVTIY CLAUSE. - These Regulations shall

take effect fifteen (15) days after publication in the Official
Gazette or any newspaper of general circulation, whichever
comes first''.

Further, Section 246 of the Tax Code provides:

"Sec. 246. Non-retroactivity of Rulings. - Any revocation,

modification or reversal of any of the rules and regulations
promulgated in accordance with the preceding section or any
of the rulings or circulars promulgated by the Commissioner
shall not be given retroactive application xxx"

8. Further, the last sentence of Section 3 of Revenue Regulations 15-2003

provides that ''this provision is without prejudice to classifying such
taxpayer under a different category pursuant to a separate provision of
the same Code;

Assuming arguendo that petitioner is not liable for the Gross Philippine
Billings Tax as provided for in Section 28 (A)(3)(a) of the Code, the
revenues derived by the petitioner, a non-resident foreign corporation
organized and existing under the laws of New Zealand (par. 1, page 1
of Petition for Review), in the year 2000 covering gross revenues from
the carriage of passengers between ports or points outside the
territorial jurisdiction of the Philippines through the sale of passage
documents in the Philippines by petitioner's sales agents in the amount
of P58,163,1n.oo, is subject to the 32% Final Gross Income Tax
under Section 28 (B)(1) of the Tax Code, as amended. It provides
that:

"Section 28. Rates of Income Tax on Foreign Corporations. -

(A) Tax on Resident Foreign Corporation. -

(B) Tax on Non-Resident Foreign Corporation

(1) In General - Except as otherwise provided in this Code,

a foreign corporation not engaged in trade or business in the
Philippines shall pay a tax equal to thirty-five percent (35%) of
the gross income received during each taxable year from all
sources within the Philippines, xxx and effective January 1,
2000 and thereafter, the rate shall be thirty-two percent
(32%). (emphasis supplied)

It must be observed that for Philippine tax purposes, the kind of tax
imposed is sometimes a crucial factor in determining whether the situs
of taxation is in a particular taxing jurisdiction or not. In the case of
BOAC, while it was held that said airline is taxable on the income
realized, at the same time, the Court observed that the airline would
not be subject to any business tax inasmuch as the absence of any
landing rights would mean that it is not engaged in the exercise of any
privilege which could be subject to the business or privilege tax
(Commissioner v. BOAC, supra).
DECISION
C.T.A. CASE NO. 6657
Page 6

Hence, in the case at bar, if this Honorable Court would hold that
petitioner is not liable for Gross Philippine Billings Tax provided for in
Section 28 (A)(3)(a) of the Code, it is submitted that petitioner, as a
non-resident foreign corporation, is liable for a higher income tax rate
of 32% under Section 28 (B)(1) of the Tax Code, as amended.

In any case, the petitioner is not entitled to any tax refund but may
even be liable for a deficiency income tax for the difference between
the 32% and the 2 1f2% tax rates as previously discussed.

9. To support its claim, it is imperative for petitioner to prove that

petitioner's administrative and judicial claims for tax refund of the
alleged erroneously paid tax on Gross Philippine Billings for the taxable
year 2000 was filed within two (2) years from the date of payment of
the tax regardless of any supervening cause that may arise after
payment in accordance with Sections 204 (C) and 229 of the Tax Code,
as amended;

10. Furthermore, in an action for refund the burden of proof is on the

taxpayer to establish its right to refund and failure to sustain the
burden is fatal to the claim for refund/credit. This is so because
exemptions from taxation are highly disfavored in law and he who
claims exemption must be able to justify his claim by the clearest grant
of organic or statutory law. An exemption from common burden
cannot be permitted to exist upon vague implications. (Asiatic
Petroleum Co. [P.I.] v. Llanes, 49 Phil 466 cited in Collector c:i Internal
Revenue v. Manila Jockey Club, Inc., 98 Phil 670); and

11. Claims for refund are construed strictly against the claimant for the
same partake the nature of exemption from tax.

This case was submitted for decision on December 21, 2005 after both parties have

filed their respective memoranda.

The issues as stipulated by the parties are as follows:

1. Whether or not petitioner has complied with the provisions of Sections

204 (C) and 229 of the Tax Code on the prescriptive period for filing
administrative and judicial claims for tax refund;

2. Whether or not petitioner is liable for income tax on Gross Philippine

Billings from the gross revenues derived by petitioner for the taxable year
2000 from the carriage of passengers between ports or points outside the
territorial jurisdiction of the Philippines through the sale of passage
documents in the Philippines by petitioner's general sales agents;

3. Assuming that petitioner is not liable for income tax on Gross Philippine
Billings, whether or not petitioner has paid the amount of P872,447.66 to
the Bureau of Internal Revenue;
DECISION
C.T.A. CASE NO. 6657
Page 7

4. Whether or not petitioner is entitled to refund in the amount of

P872,447.66 allegedly representing paid tax on Gross Philippine Billings
for the taxable year 2000; and

5. Assuming arguendo that petitioner is not liable for the income tax on
Gross Philippine Billings under Section 28 (A)(3)(a) of the Tax Code, as
amended, whether or not petitioner, as a non-resident foreign
corporation, is liable for a higher income tax rate of 32% under Section
28 (B)(1) of the same Code.

As regards the first issue raised, long-settled is the rule that for income taxes, the

two-year prescriptive period laid down in Section 229 of the National Internal Revenue Code

of 1997 is reckoned from the filing of the Adjustment Return and final payment of the tax

for the year {Philippine Bank of Communications vs. Commissioner of Internal Revenue, G.R.

No. 112024, January 28, 1999).

In the case before this Court, the Annual Income Tax Return of petitioner for the

taxable year 2000 was filed on April 14, 2001. Thus, petitioner had until April 15, 2003

within which to file a claim for refund of its alleged erroneously paid income tax on gross

Philippine Billings for the taxable year 2000. Petitioner filed its administrative claim for

refund on February 5, 2003 and the judicial claim on April 14, 2003. Both claims were filed

well within the two-year period prescribed by law.

Considering that the other remaining issues are interrelated, this Court deems it

proper to discuss them jointly.

It is petitioner's argument that pursuant to the amended definition of Gross

Philippine Billings under Section 28 (A)(3)(a) of the 1997 Tax Code, for passenger revenue

to form part of the Gross Philippine Billings, such revenues must be derived from the

carriage of persons and cargo originating from the Philippines in a continuous and

uninterrupted flight irrespective of the place of sale or issue and the place of payment of the

ticket or passage document. Accordingly, there is no liability to pay the tax if the carriage of

persons and cargo does not originate from the Philippines in a continuous and uninterrupted
DECISION
C.T.A: CASE NO. 6657
Page 8

flight. This is regardless of whether the ticket or passage document is sold, issued or paid in

the Philippines. Therefore, petitioner asserts that it is not subject to income tax on its Gross

Philippine Billings nor to any income tax. Apparently, its erroneously paid income tax on

Gross Philippine Billings in the amount of P872,447.66 representing 1 V2% of its total gross

revenue for the taxable year 2000 should be refunded. Further, the fact that petitioner has

a general sales agent in the Philippines for the purpose of selling passage documents

covering its off-line flights will not prejudice the present claim pursuant to Section 3 of

Revenue Regulations No. 15-2002.

Anent petitioner's argument that having a general sales agent in the Philippines for

the purpose of selling passage documents covering its off-line flights does not affect its

claim because Section 3 of Revenue Regulations No. 15-2002 clearly provides that having a

sales agent in the Philippines which sells passage documents for compensation or

commission to cover off-line flights of its principal "is not considered engaged in business as

an international air carrier in the Philippines and is, therefore, not subject to Gross Philippine

Billings Tax", the same is not applicable in this instant case inasmuch as Revenue

Regulations No. 15-2002 became effective only on October 26, 2002, while the instant claim

covered the taxable year 2000.

As to the issue of whether petitioner is subject to tax on Gross Philippine Billings, We

rule in favor of the petitioner.

Section 28 (A)(3)(a) of the 1997 Tax Code imposes 2112% tax on Gross Philippine

Billings on revenues derived by international air carriers:

"SEC 28. Rates ofIncome Tax on Foreign Corporations. -

"(A) Tax on Resident Foreign Corporations. - ...

"(3) International carrier. - An international carrier doing business in the

Philippines shall pay a tax of two and one-half percent (2V2%) on its 'Gross Philippine
Billings' as defined hereunder:

"(a) International Air carrier. -'Gross Philippine Billings' refers to the

amount of gross revenue derived from carriage of persons, excess baggage, cargo
DECISION
C.T.A. CASE NO. 6657
Page 9

and mail originating from the Philippines in a continuous and uninterrupted

flight, irrespective of the place of sale or issue and the place of payment of
the ticket or passage document: Provided, That tickets revalidated, exchanged
and/or indorsed to another international airline form part of the Gross Philippine
Billings if the passenger boards a plane in a port or point in the Philippines: Provided,
further, That for a flight which originates from the Philippines, but transshipment of
passenger takes place at any port outside the Philippines on another airline, only the
aliquot portion of the cost of the ticket corresponding to the leg flown from the
Philippines to the point of transshipment shall form part of Gross Philippine Billings."
(Emphasis supplied)

"Gross Philippine Billings" as above defined refers to the amount of gross revenue

derived from carriage of persons, excess baggage, cargo and mail originating from the

Philippines in a continuous and uninterrupted flight, irrespective of the place of sale or issue

and the place of payment of the ticket or passage document. Moreover, in the case of

South African AiiWays vs. Commissioner of Intemal Revenue, C. T.A. EB No. 118

(Case No. 6760), December 2, 2005, the Court En Bane already ruled that an

international air carrier like herein petitioner, cannot be taxed on its Gross Philippine Billings.

To quote:

"xxx It is evident that the definition of "Gross Philippine Billings" under

Section 28(A)(3)(a) of the 1997 Tax Code covers the gross revenue derived
from the carriage of persons, excess baggage, cargo and mail "originating
from the Philippines in a continuous and uninterrupted flight" irrespective of
the place or sale or issue and the place of payment of the ticket or passage
document. ''To originate" would mean "to cause the beginning of; to start (a
person or thing) on a course or journey; to begin, start" (Webster's Third
New International Dictionary). In other words, the flights carrying the
passengers must have originated or started from the Philippines. Verily,
petitioner, being an off-line international carrier, as authorized to
operate by the Civil Aeronautics Board (Exhibit "I") and having no
flights originating from the Philippines in a continuous and
uninterrupted flight, cannot be taxed pursuant to Section
28(A)(3)(a) of the 1997 Tax Code, that is, based on their Gross
Philippine Billings." (Emphasis Ours)

Notwithstanding the foregoing ruling that petitioner is not liable to pay tax on Gross

Philippine Billings, it is still liable to pay income tax on its gross revenue from the sales of its

passage documents. In the same case of South African Airway.5, the Court En Bane had this

to say:
DECISION
C.T.A·. CASE NO. 6657
Page 10

"However, with regard to the term "doing" or "engaged in"

business, there is no fixed or specific criterion as what constitutes
"doing" or "'engaging" in business. In the case of The Mentholatum
Co., Inc., et al. vs. Mangiliman, et al., 72 PHIL 524, the Honorable
Supreme Court had thoroughly and clearly explained the term in this
way:

" There is no specific criterion as to what constitutes "doing" or

"engaging in" or "transacting" business. Each case must be judged in the
light ofits peculiar environmental circumstances. The term implies continuity
of commercial dealings and arrangements, and contemplates, to that extent,
the performance of acts or works or the exercise of some of the functions
normally incident to, and in progressive prosecution of commercial gain or
for the purpose and object ofthe business organization"

"In order that a foreign corporation may be regarded as doing

business, there must be continuity of conduct and intention to
establish a continuous business, such as the appointment of a local
agent, and not one of a temporary character. In other words, a
foreign airline company selling tickets in the Philippines through their
local agents, whether liaison offices, agendes or branches, as in the
case at bar, shall be considered as resident foreign corporation
engaged in trade or business in that country for such activities show
continuity of commercial dealings or arrangements and performance
of acts or works or the exercise of some functions normally incident to
and in progressive prosecution of commercial gain or for the purpose
and object of the business organization." (Italics supplier/)

The absence of flight operations to and from the Philippines is not determinative of

the source of income or the situs of income taxation. Petitioner admitted that it sells

passage documents in the Philippines through its sales agent, Aerotel Umited Corporation,

and that it derives revenues from the conduct of its business activity regularly pursued

within the Philippines. Hence, petitioner is a resident foreign corporation engaged in trade

or business in the country within the purview of our tax law and must be subject to income

tax.

Petitioner, during the taxable year 2000, maintained a General Sales Agent in the

Philippines, under a Marketing Representation Agreement. The sales agent's functions

include, among others, solicitation, promotion and sale of petitioner's air passenger services.

These activities are clearly in exercise of the functions which are normally incident to, and

are in progressive pursuit of, the purpose and object of its organization, as an international
DECISION
C.T.A. CASE NO. 6657
Page 11

carrier. In fact, it can be said that the regular sale of tickets is an airline's main activity and

is the very lifeblood of the airline business, the generation of ticket sales being its principal

objective. There is no indicium of doubt then that petitioner is "engaged in" business in the

Philippines through a local agent during the period covered by the claim. Accordingly, it is

considered a resident foreign corporation subject to income tax.

The Supreme Court had on numerous occasions, sustained the validity of the

foregoing findings (Commissioner of Internal Revenue vs. American Airlines, Inc., 180 SCRA

274 and Commissioner of Internal Revenue vs. British Overseas Airways, Corp., 149 SCRA

395), where it explained that:

"The absence of flight operations to and from the Philippines is

not determinative of the source of income or the situs of income
taxation .... The test of taxability is the 'source'; and the source of an
income is that activity . . . which produced the income.
Unquestionably, the passage documentations in these cases were sold
in the Philippines and the revenue therefrom was derived from a
business activity regularly pursued within the Philippines. And even if
the BOAC tickets sold covered the 'transport of passengers and cargo
to and from foreign cities', it cannot alter the fact that income from
the sale of tickets was derived from the Philippines. The word 'source'
conveys one essential idea that of origin, and the origin of the income
herein is the Philippines."

In this regard, petitioner is still required to pay a tax equal to 32% of its gross

income received during the taxable year 2000 from all sources within the Philippines.

Unquestionably, the ticket sales were executed here in the Philippines, thus, the revenue

received therefrom were also generated in the Philippines, as the business activities were

regularly pursued in the Philippines.

It is noteworthy to stress that Section 28 (A)(1) of the 1997 Tax Code provides that

resident foreign corporations shall be subject to an income tax equivalent to thirty-two

percent (32%) of their taxable income derived from sources within the Philippines, and as

defined by Section 32 (A) of the 1997 Tax Code, gross income "except when otherwise

provided in this title, means all income derived from whatever source, including (but not

(3rt
DECISION
C.T.A. CASE NO. 6657
Page 12

limited to) the following items: (1) compensation for services in whatever form paid,

including, but not limited to, fees, salaries, wages, commissions, and similar items; (2) gross

income derived from the conduct of trade or business or in the exercise of a profession x x

x". By the very definition of the term "gross income" it is broad and comprehensive enough

as to include proceeds from the sales of transport documents. The word "income from

whatever source" discloses a legislative policy to include all income not expressly exempted

within the class of taxable income under our laws. Income means "cash received or its

equivalent"; it means something distinct from principal or capital. For, while capital is a

fund, income is a flow. As used in our income tax law, "income" refers to the flow of

wealth. (Commissioner of Internal Revenue vs. British Overseas Airways Corporation, 149

SCRA 395)

Finally, for a source of income to be considered as coming from the Philippines, it is

sufficient that the income is derived from the activities within the Philippines. In the case of

petitioner, the absence of flight operations within the Philippine territory cannot alter the

fact that the income received was derived from the activities within the Philippines. "The

test of taxability is the "source"; and the source of an income is that activity... which

produced the income" (Howden & Co., Ltd. Vs Commissioner of Internal Revenue, 13 SCRA

601}. The sale of tickets in the Philippines is the activity that produces the income. The

tickets exchanged hands here and payments for fares were also made here in Philippine

currency. The situs of the source of payments is the Philippines. The flow of wealth

preceded from, and occurred within, Philippine territory, enjoying the protection accorded by

the Philippine government. In consideration of such protection, the flow of wealth should

share the burden of supporting the government." (Commissioner of Internal Revenue vs.

British Overseas Airways Corporation, supra)

To reiterate, the petitioner, as a resident foreign corporation engaged in trade or

business in the Philippines, is not liable to pay tax on Gross Philippine Billings as provided in
DECISION
C J;.A. CASE NO. 6657
Page 13

Section 28(A)(3)(a) of the Tax Code. Nevertheless, it is still liable to pay thirty-two percent

(32%) of its taxable income derived from its sales ci passage documents here in the

Philippines.

IN VIEW OF ALL THE FOREGOING, the subject Petition for Review is hereby

DENIED for lack of merit.

SO ORDERED.

WE CONCUR:

~~\~..~
ERNESTO D. ACOSTA
Presiding Justice

~
CAESAR A. CASANOVA
Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the

conclusions in the above Decision were reached in consultation before the case was

assigned to the writer of the opinion ci the Court's Division.

~ltz- ot-A-
ERNESTo D. ACOSTA
Presiding Justice
Chairperson, First Division